Nothing To Bragg About: Epstein & Yoo On Manhattan DA’s Trump Indictment

>> Tom Church: I want to show you something, guys. Just one thing. A barefoot.

>> Tom Church: Welcome back to a special edition of a combined Law Talk and Libertarian podcast coming at you from the Hoover Institution. I'm your Law Talk guest host and Libertarian regular host Tom Church filling in for Troy Senik.

I took over Troy's hosting of Libertarian a few years ago. Now I'm doing this with Law Talk for today. John and Richard, I think pretty soon, I will go off and write my own biography of an obscure president whom I really, really enjoy.

>> John Yoo: That's great.

>> Tom Church: Well, I'm so excited to attend the combined law school of Epstein and you.

I usually, of course, talk to the Epstein part. That's Richard Epstein, the libertarian. Richard's the Peter and Kirsten Bedford senior fellow here at the Hoover Institution. He's a Laurence A Tisch professor of law at NYU and is a senior lecturer at the University of Chicago. And John, I'm so excited to talk to you as well.

John is, of course, the visiting fellow here at the Hoover institution. He's the Emanuel Heller professor of law at the University of California, Berkeley. And he's a former deputy assistant attorney general in the Bush administration. And, John, I won't date you. I'll say it's the W Bush administration, now.

 

>> John Yoo: It's great to be here. And for the listeners, I am rolling up the Jolly Roger pirate flag up the flagpole now that Law Talk has successfully expanded its pirate empire and taken over another podcast. And Tom, we are reserving the biography on Zachary Taylor for you to write.

 

>> Tom Church: I was gonna go Millard Fillmore, but I can do Taylor, that's okay. Well, all right, gents, I've called you here today to discuss the now unsealed indictment of Donald J Trump. Now, the reactions before the indictment were unsealed were obviously hostile from the right, with some in the middle and left bordering on skeptical, but I think maybe hopeful.

And now the reactions after the indictment was unsealed have been even more negative, especially even for people on the left. I think we're getting people questioning DA Alvin Bragg for even bringing the case. Jonathan Chait, writing for New York Mag, says this case shouldn't have been brought. Mark Joseph Stern critical of it.

Mitt Romney, while a republican senator from Utah, obviously has no love lost for former President Trump and has said the indictment is a terrible idea. So, John, because I don't get to talk to you that often, I want to start with you. Boohoo. Yeah, boohoo. Tell me, John, now that we know more about the case, I need to know the merit.

What is the strength of the legal argument being made? How have the statement of facts differed from the press conferences and promises we were getting last week?

>> John Yoo: Sadly, Tom, it's worse than we thought. If you go, first off, everyone's fixated on the 34 count indictment. But when you actually read the indictment, this is a classic example of stuffing the indictment, which you're not supposed to do.

Which is basically every time Trump allegedly cut a check to Michael Cohen, Bragg counts that as four different charges. So he says, Michael Cohen's sent an invoice. That's one charge. Then the Trump organization recorded that was gonna make a payment. That's a second charge. And then it says, and then they sent the check.

That's a third charge. I don't know, at this rate, Bragg could have just charged him 130,000 times for each dollar that he sent to Michael Cohen. I mean, this is at the Justice Department where I worked. We would never have done something like this. This is maybe one, maybe two different courses of conduct, but to do it, to charge it that way already should have people's antenna up about how flimsy is.

Then the second thing is really disappointing. And I really think Bragg has done a disservice here to prosecutors everywhere, was by saying, okay, we're gonna charge Trump basically with a misdemeanor under New York law. Which is fiddling with the corporate, misrepresenting something in the corporate books. Problem there is that statute of limitations expired after two years.

So that was five years ago. And it's not a significant case, not really. It doesn't really involve any real jail time. So to elevate it into a felony, which is serious jail time, which is something you would go to a grand jury over. Bragg has to say, and he does say, believe me, 34 times he says it.

He says that these misdemeanors were used to basically cover up some other crime. The big problem with this indictment, the big hole, and the reason it should be a disappointment for everyone on both sides of the Trump issue, is that the indictment doesn't tell us what that other crime is.

I think that actually has serious problems for Mister Trump's due process rights. How can he prepare a defense if he doesn't know what the crime that he's really being charged with is? Now, there's been a lot of speculation that it's a federal campaign law crime, maybe a New York state law, election law crime.

But actually, the indictment doesn't tell us. And I think there would be serious legal problems if it were either of those crimes.

>> Tom Church: And would it matter if it were federal or New York, a crime that he was covering up here?

>> Richard A. Epstein: Yes.

>> Tom Church: It would, Richard, fill me in here.

I mean, how does the DA have jurisdiction in this case?

>> Richard A. Epstein: Okay, well, look, I mean, the first thing to say is John is much too kind about this particular indictment having cost as a cost inheriting. The first point I want to make is there's a reason why you duplicate the counts.

It's not just an aesthetic element. It's each separate count carries a four year maximum term with it. And so if you break this thing up into enough small slices, you take 34 and multiply it by 4, and you get a very big number, right, 136 or something. Well, that's obviously crazy because each of them has a four year term.

So that's that. And then, well, John is absolutely right. I mean, the due process writes, you have to have fair notice of the charges against you. And the Bragg team says, we don't have to tell you. They don't have to tell you any indictment. Well, then when do they have to tell you about what this thing is going to be and so forth?

They don't do this. What makes this even crazier is I gather that they have decided to put off the first hearing before the judge again until December. So this thing is going to be sitting out there for seven months that nobody is, or eight months, and nobody's really quite sure of what it is that is going on.

And this means that the whole thing has a kind of a political undertow which will be drawn out over and over again. My guess is that there will be very strong efforts on the part of the Trump team to chop down the indictment. And then to get to the last question that you asked me very simply, why does it make a difference if it's a federal or a state crime?

Well, if it's a federal crime, I think the correct analysis is that once the federal government decides that it's not gonna prosecute somebody because they don't think the evidence warrants a particular charge, that's the end of the matter. It is not the situation where if the federal government decides not to charge on a federal statute, any one of, say, 50,000 state or local governments could decide to king the thing over.

It's got to be a case which is exclusive federal jurisdiction. And one would like to ask in this particular case, can anybody think of any case wholly apart from the complications of the statute of limitations where a federal prosecutor decides not to prosecute for campaign fraud? And some state government official says, I'm gonna prosecute for that same thing.

I don't have to worry about the statute of limitation in there. It can be, it has to be exclusive federal jurisdiction. Then-

>> John Yoo: Can I go farther than Richard? I actually think it is unconstitutional for a state prosecution.

>> Richard A. Epstein: Well, John, I mean, I fully agree. And then, of course, then there's the other side.

Right, which is can the state guys. Do this under state law? And I think the answer is no. I think what really is going on here is that the federal system is self contained. And what the state law cannot do is to make some federal action, a state action and then declare it illegal because by trying to duplicate the violations, it necessarily undercuts the federal jurisdiction.

So either way in which he wants to fill in the mystery statute, I think that the whole thing is utterly improper. Now, why is it important to do it in this fashion? If you read much of the commentary, they're trying to tell how Trump is going to win on the evidentiary question, for example, the question of did he intend to buy off stormy Daniels for family peace or for a campaign contribution?

But if it turns out that there's no jurisdiction to prosecute the case, we don't have to go through a trial. We don't have to go through pretrial interchanges of one kind or another. The case stops now. And the piece in the Wall Street Journal by a couple of prosecutors saying, well, we think we could win on motive is a very unproductive way of looking at this case.

This thing should be stopped now on structural ground because as the learned Mister Yu said, he said this is a constitutional set of defects to which you not only have the jurisdictional stuff, but also the due process stuff. So you agree with me, John, right?

>> John Yoo: Yeah, I think so.

I think there's actually two supreme court cases that handle this. One is, I don't think you're a big fan of this case, Richard, but Prince, do you remember, so Prince is the case.

>> Richard A. Epstein: Yeah, I remember that, it's about the sheriff.

>> John Yoo: Yeah, about the sheriff who-

>> Richard A. Epstein: The commandeering case.

 

>> John Yoo: Yeah, anti-commandeering, Congress tried to make state officers enforce the Brady handgun background check law. Very interesting case. And one thing that the court said is state officers cannot enforce federal law because there's no way for the president, who is constitutionally charged with carrying out federal law for the whole executive branch, can't fire a state officer.

So there's no way for the president to actually control what a state officer does. And then I think even more important cases, this case called Arizona versus United States, and this had to do with immigration, which I know you've talked about before on this podcast. In that case, Arizona felt that the Obama administration wasn't prosecuting the immigration laws sufficiently, and so they did exactly what Bragg is trying to do here.

They said it will be a violation of Arizona law for someone to violate federal immigration law, essentially for someone to be in the country legally. And the Supreme Court said Arizona couldn't do that because that seizes from the federal government and from the president in particular, the right to decide how to investigate, prosecute federal law, whether to bring some cases or not bring other cases.

As Richard said, the federal government already looked at this set of facts and they made a pass on it. So I would put it. I don't know what you think, Richard. I put to Richard, actually, and say, if this succeeds, then why doesn't every red state pass a misdemeanor law that says it is a violation for anyone to be bribed in violation of federal law?

Say, for example, the Biden family or its many members, if they ever received any money from Ukraine or China or wherever? Why can't that be a state violation now, too, and every republican DA launch investigations into them?

>> Richard A. Epstein: Well, John, I don't think the analogy is perfect because you're being too kind to the Bidens.

The stuff that Hunter Biden did, in effect, may well be a violation of state law wholly unrelated to any kind of election offense. So I don't think you'd have the exclusive jurisdiction there. And indeed, that's one of the complications that comes out of the Arizona case. It's well understood, I think, that these states cannot enforce its own interpretation of the immigration law.

That's a principle that goes back when it really mattered to world War two, and it's been uniformly done there. But there's always the question, suppose now somebody comes into the state as an illegal immigrant and commits a murder on a local citizen. I do not think that the exclusive power over federal jurisdiction stops the state from prosecuting somebody from a crime which is made guilty or not guilty, wholly independent of the immigration status.

And so I think that those kinds of cases can be there, but what you cannot do is, for example, to say, well, we don't like the way the immigration laws are working, so we're gonna bus people out of this particular immigration depot and put them into another place.

I think that would be more immigration related rather than related to the crime. So I think with respect to the Bidens, particularly with Hunter Biden, there is no difficulty whatsoever if, in fact, he has violated state law, including state reporting laws, of prosecuting him under state law, because there's no federal authority that can veto that with respect to the commission of state law crimes.

Now, whether he's committed these state law crimes is something I'm not prepared to say. I don't know the record well enough, but I don't think that you have, with respect to irregular conduct by private citizens, anything like the complexities that you have with federal law having to do with federal elections and federal campaign prosecutors.

So I think that there is, in fact, the difference. And one of the ironic things, of course, is that this shows you the weakness of the special prosecutor system. Mr Trump is being investigated by a guy, I think his name is Jack Smith, but it doesn't matter. This is a guy who really is intent upon doing it.

And then they decide to investigate the Biden family, and they put some other nondescript prosecutor in there. And this is part of the real dangers that you have is differential enforcement is something that can happen. It certainly can happen at the federal level. I have no confidence whatsoever that Merrick Garland will avoid that.

And it also could happen here with Bragg. He says that Trump is not above the law. Well, he's below the law. Name me anybody else who committed a trivial crime eight years ago who gets half the resources of the department devoted to him. If it turns out that Bragg was an ardent Trump supporter and reluctantly concluded that he committed a crime, you might believe it.

But this man has been a Trump hater from the day he ran for this particular office, and now to claim that the majesty of the law requires what he's to do, adds hypocrisy to an utterly inept indictment and so forth. So I think he comes out as a national disgrace, frankly.

So I've gotta ask because we're talking about the merits of this case, and John, Richard doesn't like when I do this, but I want you both on record giving me the odds this trial actually goes to trial or gets thrown out.

>> John Yoo: Richard doesn't like to do that, I love that.

I'm a gambler by heart, right? I play craps so I can do odds. So what are the odds that this actually. So I think the odds are pretty low that we ever get to the opening statements by the prosecutors and defense attorneys before an empaneled jury by the end of 2024.

 

>> Richard A. Epstein: Wow, that's pretty good?

>> Tom Church: John, you're not making a prediction that this is gonna be not lopped off at the head the way when I did. You say, in effect, you don't think that they're gonna have a categorical pretrial motion which dismisses the case, but that everybody's gonna dawdle and become totally confused so that we'll have to go through the entire election campaign before society.

 

>> John Yoo: One way.

>> Richard A. Epstein: I mean, you may be right, John, but you have a much more fevered imagination than I do. What you're gonna do is you're gonna tell me all the dirty tricks that could be played on both sides in order to string this thing out indefinitely, right?

 

>> Tom Church: Of course they're going to do that.

>> John Yoo: Yeah, but also, I think you could see what you're talking about, Richard. Some kind of major motion in the beginning to dismiss the case outright just based on the law. And if that got going, it would take a long time for it to get all the way up the New York state court system and into the US Supreme Court.

 

>> Richard A. Epstein: I think there would be a federal question there. Yes. What John is saying, in effect, is that even if you make a trial. Decision. If it's against Bragg, is he gonna have the right to appeal this? And I think the answer is yes. And then if it goes up, it's going to go to the appellate division, to the Supreme Court, the court of Appeals in New York state, and then it's a gimme for certiorari.

So each of these stages are gonna take time. And one of the things that's always a terrible variable, as I have learned in my recent career as a public litigator, is that a district judge court is an absolute tyrant. On one issue, you get a motion to do something and they could answer it within 24 hours, or they could answer it within 24 months, and you never know which of these two you're going to get.

So his ability, there's no way to force him to make a decision at the trial level or anybody else at any other level to make it. And so I himself have been involved in litigation in which some decisions which seem to be urgent are made in seven months, and other decisions which don't seem to be that urgent are decided, within 24 hours of the papers being filed.

The only common element between these two is if my name is on the other side of these things, it's a dead loser. That's what I've learned.

>> Tom Church: It has been said in this podcast, right, that if you're 100% right on the law, maybe you win half the time or so.

But when you're suing the federal government- Sure, sure, but if this case is maybe 100% wrong on the law, what are the probabilities you're gonna give it that it's actually going to go through and happen?

>> Richard A. Epstein: 50% right.

>> Tom Church: Okay, there you go.

>> John Yoo: Well, can I also make this is point that this actually shows the problem with allowing this into state court at all is, no offense to this judge, but do you think this guy's ever thought about Prince or the anti problem or Arizona versus?

These are really hard federal questions for any judge, but you're putting them in a court which is really unsuited to it, which is a state court criminal trial judge who never has to deal with these issues. It's gonna take him a long time, if he really wants to do a good job to figure this out now, he just might dismiss them because he's just hell bent on getting to trial.

But it shouldn't be, I mean, it would take a federal court a long time to figure out the right answer to these problems. Let's step back a little bit and look, big picture here, Richard.

>> Richard A. Epstein: Okay, I like big pictures.

>> Tom Church: The big picture, because the question I think, is, this is the first time a former president's been charged with a felony.

What should the standard be for indicting someone of this status? And I have to ask, isn't there some sort of notable irony that it's Donald Trump we're talking about when it comes to breaking norms of elections in the United States? I mean, Trump, famously, has been chanting lock her up for forever.

He's called for jailing President Obama and obviously going after Joe Biden's family and many, many other aspects where he has. Well, I guess I'll ask, has he forfeited his right to this argument that we shouldn't do this level of politicking?

>> Richard A. Epstein: No, I have the following statement about Donald Trump, which is his rhetoric is always horrible and his conduct is generally not illegal.

And so he talks about locking up Hillary, doing all sorts of terrible things to his opponent. And so the question here, John may know the answer is, can you think of a single indictment that Trump has followed which has any of the ugliness associated with the Mueller investigation, the Steele dossier, the Flynt situation and so forth?

I can't think of any. But the problem with Donald Trump is he gets so angry, he so loses his sense of purpose that he sounds like a blithering idiot. And then when it turns out he comes to do something, there's always somebody inside that administration that walks him back off the ledge.

Whereas when you're dealing with Bragg, I mean, he comes up there and starts to talk about the solemn duties of a prosecutor to respect the rule of law and acts in a completely lawless and irresponsible fashion. So I think that Trump is his own worst enemy on that.

And I think the Democrats may be thrilled with the fact that this thing is going to go on because you could count for it. Whenever there's a favorable development for Trump, he will say something completely stupid so that he will once again be on the defense. The man likes to live dangerously, and that's not the way you win a presidential election in these troubled times.

 

>> Tom Church: On truth social, he just posted that Congress should defund the DOJ and the FBI until they come to their senses. It sounds like what you're talking about here, John, do you agree?

>> John Yoo: I mean, one thing is like he's forgetting who's bringing the charges. I mean, why?

So you're getting prosecuted by the DA in New York, and your response is defund the Justice Department of Washington. I don't think the details have ever been his strong suit. No, but on the other hand, he's worried about what's going to happen in Georgia and what's going to happen with Smith.

Yeah, so this is the thing, I think, and going to your question, Tom, I don't think anybody's above the law, of course. And ex presidents are subject to criminal investigation like anybody else. And as we know, when we talked about impeachment, the federalist papers talk about prosecuting former presidents once they're removed by impeachment for the things for abuse of power when they were president.

So there's no reason that presidents should be immune from criminal investigation. On the other hand, we have never done it because we don't want presidents looking over their shoulders and second guessing themselves when they're making really difficult decisions. That's why the presidents are immune from civil lawsuits after they leave office for their official acts.

So it seems to me that just as a matter of good sense, not constitutional interpretation, but good sense, is that we should leave presidents pretty much alone unless something, there's some kind of serious abuse of power that you're going after them for. That's not the Bragg lawsuit. Now that might be the January 5 investigation that Richard points out is going on with a special counsel right now.

Let's see the facts on that. In fact, an unfortunate result of this Bragg lawsuit is that it does give Trump more ammunition to claim that people are out to get him and are using prosecutions to do it. It's gonna erode public trust in whatever comes out of the special counsel investigation.

On the January 6 investigation, suppose this guy Smith does find a lot of information we don't yet know about that does link Trump to the January 6 attack on the Capitol or some broad effort to undermine the election laws and stop the electoral vote count. But if you've already had months of watching this circus in New York go forward with this trumped up indictment, no pun intended, and the public is going, the public is going to lose faith in the investigation.

That really does matter.

>> Richard A. Epstein: Look, I will say something about the January 6 stuff. I always believe that independent investigations are appropriate, but I think in some sense, it's going to be very difficult to have one because of the way in which the deck was stacked when the January 6 committee came together.

So I'm just gonna mention a couple of things. One is that the Republicans were not on it. They boycotted the decision. So you have two anti-Trump Republicans on with Pelosi, and so it's a seven nothing split with respect to that body. Already, I think that should cast a real doubt on it.

Then you start looking at the charges, and they're very careful to investigate Trump. But there's nothing in the investigative mandate which says, let's look at the behavior of Miss Pelosi and the way in which she oversaw this from the role of Speaker of the House. Then there's this guy, Ray Epps, I believe, is his name, and he's standing out there urging people to go in.

It seems pretty clear that he is, to some extent, the Democratic operative in some cases, and he's not subject to any kind of investigation. So what you're going to have to do is to ask yourself, to what extent is it legitimate for people inside the Justice Department to rely on any information.

That's contained in the report, which is prepared by the J6 committee, when, in fact, that is going to be very heavily loaded on one side. So they have to be extra careful, I think, in the way in which they start to look at that particular evidence. And I see no evidence whatsoever that the Biden people are gonna do this, because I have no faith whatsoever in the leadership of Merrick Garland.

I think he's been relatively weak on this stuff and does not gonna exert any effective oversight of any of his special prosecutors. So that we do have the spectacle of fast-tracking the Trump investigations and slow-walking the investigations with respect to the Biden family. And this is being done by a attorney general who works for the Biden family, or at least the president of the United States.

So I'm really bothered by all of this stuff. And I think, in effect, that the comedy principle is that unless you can show some sort of serious major thing, you don't do it. And then there's, of course, the problem of what counts as a major event. Is this an effort at insurrection, on the one hand, or is it a series of trespasses by a bunch of individuals acting more or less on their own information, on their own self or being encouraged by other people?

I think you have to really start that question. I am, in general, without any real strong sense of guilt having been established on the record prior to the launch of a criminal case, very reluctant to do this. I remember when Bill Clinton was subject to impeachment and the Supreme Court said, well, we're not gonna harm anything, we'll just let discovery go on.

I thought that was an outrage, because you know that you can make stupid statements in discovery. And when you start making these mistakes in discovery, all of a sudden they lead to an impeachment that is gonna be conducted by the Republican Party, which under those circumstances, I thought was completely unjustified, given the political account.

So the difficulty in some sense, is we so weaken the standard for impeachments, and that means that we're gonna weaken the standards for criminal cases. And so the historical notion that we don't become a banana republic by having one administration prosecute its predecessor in office, we're gonna have a serious problem with that.

And when Biden has gone from office and it's a Republican in charge, Lord knows what is going to happen, but it's not gonna look pretty or nice.

>> Tom Church: Quick follow up, Richard. Could the Supreme Court step in earlier than waiting for the case to get up to them to, to actually, well, just cut it off early?

 

>> Richard A. Epstein: Well, I mean, I think John and I would agree on this. The Supreme Court has no power to be proactive and interview things unless they're requested to do so. And the rules with respect to an appeal and certiorari usually require that they either be an explicit statute that allows you to jump over intermediate courts or that they've acted with extraordinary expedition so that the question is presented to them.

John, have I got that right or am I wrong?

>> John Yoo: No, no, I think that's correct.

>> Richard A. Epstein: Okay, good.

>> John Yoo: That this is actually interesting fundamental problem with the way federal questions get to the Supreme Court, which is the vast number of federal issues that arise in the courts, arise in the state courts, because most of them arise in every criminal prosecution.

Like, did you get Miranda? Was the search legal, right, and so on and so forth. So because of the way our federal court system is designed, though, you can't get into federal court unless there's a federal issue in what the plaintiff files or what the prosecution brings. If your defense is federal, under our system, you have to go up through the state courts first.

And then only, and then at the end, when the state supreme Court has rejected you or something, then only then can you go to the US Supreme Court. As Richard says, you can't just sorta automatically just drive your case up through to US Supreme Court or the federal courts right away when you're a criminal defendant.

 

>> Richard A. Epstein: So one of the nice things about this is the only way you could figure out these rules is to be a master of state law pleading. It was a case called Mottley against Louisville and Nashville Railroad, in which what they did is they raised a defense when somebody said that, look, I mean, we promised to give you a perpetual ticket to ride our trains for free after an accident.

And there was a statute from the federal level which purported to prohibit those kinds of agreement. But since it was an affirmative defense and not part of the prima facie case, you had to wait until it went there. Now, John, here's something. Did you know that the case actually came back again?

 

>> John Yoo: Yes, I mean, I teach the procedure. I heard that after the Mottleys lost, they actually went back to the Supreme Court the proper way. Is that right, through the state court system?

>> Richard A. Epstein: Yes, it did. And they decided to simply-

>> John Yoo: What was that?

>> Richard A. Epstein: What they did is they upheld the defense based on the statute, even though it was an abrogation.

 

>> John Yoo: Yeah, that's true. I don't know what was so bad about getting a life. It'd be like today something bad happened to Disney World, and your remedy Disney gave you was lifetime admission to the parks. Why does the federal government get to override that? That seems perfectly fair to me.

 

>> Richard A. Epstein: Yeah, I mean, it was a sensible settlement. But look, it's important to understand this historically, because the level of peace power, narrow police power construction in the period between 1910 and 1920 was much greater than it was. And you got finally up to the 1930s. But there were still signs that the traditional rules were starting to decay into erode, and that the role of the federal government in allowing, or the Supreme Court, in allowing rather dubious schemes to go forward was gaining steam at that particular point in time.

And the taxing decisions from and other cases in the 1930s, 19 teens, rather, also the same kind of tendency to give the federal government its way. That is, there were two progressive movements. There was one in Wilson years, and there was one afterwards in the Hoover years, actually, as well as the Roosevelt years, which redefined the role of the Supreme Court.

That's collateral to what we're having here. But I think the point is such that one of the things we do have to worry about very seriously is whether or not the probity of these other investigations could withstand scrutiny. Because the same presumption against indictments of former presidents by current president, it seems to me, should apply to federal investigations or to state investigations of the sort that's going on in Georgia.

 

>> Tom Church: John, I gotta ask, you mentioned that this is giving former President Trump ammunition. It's not really seeming to bump polls for him just yet. Do you think DA Alvin Bragg believes he truly has a case? Or do you think it's just more likely that we're gonna see his name on the candidate list for mayor of New York City or Governor of New York.

 

>> John Yoo: Part of this is that there are rumors that have come out of the office that actually, Bragg had originally decided not to bring this case. And so you wonder.

>> Tom Church: I've heard that, too, yeah.

>> John Yoo: Why did he change his mind? One thing is, I don't think, unlike other people who've come in on this, I don't think it's illegitimate for Bragg to say there are policy or political issues.

When people are accusing him of being a political DA, that's the way New York decided to set up its system. Like many jurisdictions, you elect your prosecutors. And so, yeah, if the people overwhelmingly want this, then I don't see that as a problem. I don't even see it as a problem if he wants to win these high-profile cases in order to run for higher office.

I mean, he had been in the attorney general's office. The Attorney General of New York has said similar things and has brought cases against the Trump organization, too. I don't think there's anything really wrong with that. I don't think these claims, at least legally, are gonna work where Trump or people say, this is a political prosecution.

Prosecutions do have a policy element in them because you're only supposed to bring them in the public interest. And so, you know, that is in some sense a political decision. Now, people say it's a republican Democrat thing. He's only doing it cuz he's a Democrat and he's after Trump as a Republican.

I actually think he's strangely helping Trump wrap up the primary because you're right, Tom. I don't think there's been movement in the polls generally. Well, it seems like in the last two to three weeks, Trump has really extended his lead over Ron DeSantis or any other challenger for the republican primary.

Unfortunately, so I think there seems to be this rally around the flag effect going on with Trump amongst Republican primary voters.

>> Richard A. Epstein: Unfortunately, that is probably the case. And one of the things that makes it such is that so long as Trump is subject to prosecution, any Republican who tries to attack him can be accused of an ally of Alvin Bragg rather than his opponent of Trump for political reasons.

So I think every one of them is forced to say, like DeSantis has said, I regard this prosecution as utterly unwarranted. Once you said that, to sort of mount a political campaign based upon his competence to see your office, his erratic nature, the substantive difference between them, it's very hard to do that.

Having committed yourself to saying, this guy does not need a jet out of jail free card. He should never have been prosecuted in the first place, so it does help Trump. The argument is that Biden actually kinda likes this, because one of the striking things, and I don't know how to think about it, is the president has been absolutely mum on the entire affair, right?

The White House has said nothing. It turns out we have no idea whether there was any communications and if so, what the content was between Bragg and his office and Garland and his office, or even the federal Das in DC. So the Democrats are basically playing this as a very low ball case.

And so is it appropriate to say that we sort of would like Mr Biden to tell us whether he thinks this is a legitimate move or not? I think we should ask him. My guess is I think he's gonna say, I'll let the rule of law take care of this, and I have no involvement in it, which I regard at this point as an evasion.

But I think Biden wants Trump to win, so he thinks he could beat him in the general election. That may be a wrong situation. However bad Trump is, Biden is basically, in my view, bidding for the role as the single worst president in the history of the United States, given his own substantive policies in rapid succession.

I think he's been a failure everywhere. But you can see he thinks that the best chance he has is to win against some guy who's too long in the tooth and too erratic in his behavior. And they really feel somebody like Nikki Haley or Ron DeSantis much more than he fears the former president of the United States.

So I think the fact that he is silent is actually speaking in a fairly loud voice on something for which I think he should be asked to be explicitly accounted for.

>> Tom Church: Well, let's end on this. We've talked about this case. We've mentioned the January 6 investigation on the federal side.

There are two other investigations to think through. That is the case in Georgia about the call made. And then there is the federal case dealing with sensitive and top secret documents and the back and forth that former President Trump had with the FBI about whether they were there or not, and then the following raid.

Tell me, I don't think we nailed down, really, what level of a charge would we look at and say that's a legitimate case to be brought because we don't want to play politics. We don't want presidents to look over their shoulders. But at some point there is something that we could say, okay, that seems like an appropriate case.

 

>> John Yoo: Yes, I've argued this before, is that I think if obstruction of Congress, I think if is possible in the special counsel investigation, I think that's serious enough to, or conspiracy in the attack on Congress or conspiracy to obstruct the electoral count vote, I think that would be serious enough to bring charges against the president.

With the Georgia case that you mentioned. Based on the facts, I don't see it yet. But if, suppose there's more out there we don't know about. Suppose President Trump did more than just call the Secretary of State of Georgia, Brad Raffensperger, and say, I gotta find 100,000 votes.

Suppose he was actually conspiring with people in Georgia to stop the proper appointment of electors and their vote in Georgia. That might be serious enough. I think that would be serious enough. I'm sort of an open mind on the classified documents issue. The other special counsel investigation so far, it doesn't seem to me important enough to break this tradition of not charging presidents with crimes.

But I think that's a close call. But I see that in some ways, like this bookkeeping issue, it doesn't seem like President Trump, based on what we know so far, kept classified information for anything but having mementos or tokens from office. Wasn't trying to harm the country in any way, wasn't trying to mess around with our national secrets.

So to me, I wouldn't think of that as important enough to break the 230 year tradition of not charging presidents.

>> Tom Church: Richard, take us home.

>> Richard A. Epstein: Yeah, I'll take you home. Look, myself, as I hate to talk about, but the potential irregularities, because anything I say is completely unrelated to anything that Trump would say, but you're gonna be in his shadows.

But what happens is the serious issue that came up in Atlanta, for example, was a chain of custody question which plagued all of these doubts. And you know that people were forced out of a room for several hours to fix a non-existent leak. And so when you see all that stuff and the late surge in the Biden votes, this is what I would say.

The phrase I'm asking you to find votes could well have been simply, I think these ballots have been miscounted, and that I want you to do the correct job and that you, as secretary of state, have a strong interest in defending the probity of your office and the probity of the election, even though they're false.

Well, if he's saying, I don't think this thing was properly done, and I want you to investigate for irregularities in Atlanta, that's not a crime. If you say, I want you to invent a series of votes that were never cast, that is a crime. So it takes a lot of doing for this.

And, of course, we know that Donald Trump is always guilty of hyperbole and stupidities in the way in which he thought. And so then the question is, if you start hearing statements that can be read both ways, which way do you want to read it? Depend a lot on what you think to be the background facts.

So I regard that as kind of an iffy case. I mean, like John, I'm not happy with what he'd done. I think that somebody muzzling him would be a situation. Whether it arrives to the level of a crime is a different and tougher issue. When you get to Mar-a-Lago, one thing, correct me if I'm wrong again, but they showed all the papers strewn around the place.

Remember the photograph? Somebody said it was the FBI that had sent those papers in that various way and that Trump had not done that. Well, I mean, I have no idea whether this allegation is true, but I'm pretty confident if you see the visible signs of neglect in office being provided by the FBI and not by Trump himself, that's a real question of tampering with evidence and trying to create a false opinion, and that cuts against the prosecution.

And as John said, we have here a prophylactic rule. We don't want these documents out, but fear that if they get there, something can happen to them. We know he didn't leak them to anybody else, and we know, essentially, that he did not keep them for any purpose to sabotage anybody else.

There's the comparison to Biden, who had a bunch of these documents in his various premises, also the claim of innocent use on this. I would not prosecute Biden for that. If the Trump behavior was the same, I think we could still distinguish it a little bit. But I think, on balance, it's sufficiently ambiguous and sufficiently minor relative to what I think to be a serious issue, that is letting papers get into the hands of our enemies or even in the hands of our friends in an unauthorized fashion.

So I would be inclined presumptively not to prosecute either of these kinds of cases. I want something with a systematic, well-known, established cover-up and so forth. In both of these cases, there are a lot of inferences that you have to draw from incomplete facts. And in these cases, I think that the presumption against prosecution, which has served this nation well, by and large, should probably, I stress, probably be observed.

So I think, in effect, both John and I are pretty close to the same position. We're very uneasy about this. I think my view is probably a little bit tougher. I want a little bit more to overcome it than John do. But this is a love quarrel between friends, not a vicious dispute between people on the opposite side of the political spectrum.

 

>> Tom Church: And I think on that note, we'll end this special combined edition of the Law Talk and libertarian podcasts with Richard Epstein and John Yoo. Richard and John, thank you for letting me get you guys in a room to talk about this important issue. If you found this conversation thought provoking, please share it with your friends and rate the show wherever pods are cast.

For Richard Epstein and John Yoo, I'm Tom Church, we'll talk to you next time.

>> Speaker 4: This podcast is a production of the Hoover Institute, where we advance ideas that define a free society and improve the human condition. For more information about our work or to listen to more of our podcasts or watch our videos, please visit hoover.org dot.

 

>> John Yoo: I finally got the joke.

>> Richard A. Epstein: What joke?

>> John Yoo: Pods cast instead of podcast, right?